文 | 新浪科技 周文猛
编辑 | 韩大鹏
Article | Zhou Wenmeng of Sina Technology
Editor | Han Dapeng
Wechat expression itself is not right or wrong, but in different scenes, its meaning is not the same. The lawyer pointed out that if there is a chat context as a basis, then facial expressions can play the same role as words.
Since 2018, there have been 158 cases using emoticons as evidence, including 8 in 2018, 23 in 2019, 66 in 2020 and 61 in 2021, according to the China referee Writing Network. As emoticons begin to become “evidence” in judicial procedures, how to use emojis cautiously is becoming an “art job”.
Abusing “sun” and “fist guessing”, the party concerned is found to be “illegal”
Emojis such as “like”, “OK” and “Sun” used by the public on Wechat have been written into court judgments and become “evidence” to support the court’s filing and examination, according to an article released by the Jiangsu High Court. As soon as the news came out, it immediately attracted the attention of the outside world, and the topic # Wechat emoji was written into the judgment # and quickly uploaded to Weibo, causing extensive discussion.
Many netizens said one after another, “after that, can the expression of ‘hit you’ pose a legal threat? Does’ dog head ‘mean sarcasm? “
According to the Jiangsu High Court, in a housing rental dispute in Guangdong, the lessee Liu repeatedly reminded the lessor of his willingness to increase the rent after the lease expired, which did not mean that he would continue to lease or move out of the house involved in the case. just replied to a “sun” emoji. Later, the two sides disagreed on whether the expression represented an agreement to increase the rent, and the lessor sued to the court and argued that the lessee agreed to increase the rent, which was supported by the court.
In addition, according to the (2019) Criminal judgment No. 371 issued by the people’s Court of Tonglu County, Zhejiang Province, the defendant Zhang falsely claimed to engage in fan welfare activities in the name of publishing false fan winning information to distribute the jackpot, let the victim play fist guessing with Wechat emoticons, and commit fraud by controlling the result of fist guessing by cheating software. In the end, the act was detected by the court and given corresponding sanctions.
In addition, in October last year, the Ningxia Qingtongxia Public Security Bureau received a report from the public that someone sent insulting messages to the people’s police in the WeChat group. After investigation, because the illegal suspect Li was dissatisfied with the control of the epidemic in the community, he sent a photo insulting the people’s police in the WeChat group, openly insulting the image of the police. After interrogation, Li confessed to the illegal facts of insulting the people’s police in the WeChat group. Li’s behavior has constituted provocation and stirred up trouble, and he was punished by administrative detention for nine days in accordance with the provisions of the Public Security Administration punishment Law.
How to measure the penalty for the abuse of memes? Lawyer: it needs to be determined in the context of chat.
In a series of cases, under what circumstances can the abuse of emojis be considered illegal and criminal? And sentenced?
In the view of Zhao Liangshan, a senior partner of Shaanxi Hengda Law firm, Wechat emojis mainly help express emotions and enrich the chat experience in daily life. There is no legal significance for specific emojis to be listed separately, but if they are supported by the context of chat transcripts, they can play a role equivalent to words.
In addition, Feng Shuai, a Beijing Capital (Tianjin) law firm, told Sina Science and Technology, “in our daily use, we should be judged by the cognition of the general public.” according to the occasion of use, the logic of the text before and after the use, the object of the audience, the reaction that the other party may have during general use, and so on. “
“there is nothing right or wrong about the emoji itself. it is everyone who gives it meaning, and there are a thousand Hamelets for a thousand viewers.” Feng Shuai further pointed out that how to identify illegal or criminal misuse of emojis also needs to be measured in the light of the harm caused by the parties to the victim.
According to the principle of modesty in criminal law, illegal acts usually refer to acts that do little harm to society, and should not be regarded as crimes if the circumstances are significantly minor and harmless. “however, if acts that infringe upon the interests of the state and social and public interests, infringe upon citizens’ personal and property rights, and other acts that endanger society, they shall be subject to criminal punishment.”
Morality is the inner law, and emojis should be used in good faith.
With a series of illegal and even criminal cases finally solved by the court, people who live for others and even economic interests due to the abuse of emojis are also being punished by the law. However, the abuse of emojis has not stopped there.
On the Internet, in some cases of “pornography, gambling and drugs” crimes, criminals use emoticons instead of sensitive words to express metaphorical meanings in order to evade investigation. By creating online chat groups, some criminals publicize and sell their self-made rape drugs, aphrodisiac and other prohibited items, and at the same time, in order to evade detection and attack by the public security organs, in the chat group, they use symbols such as “candy” and “wine glasses” to refer to illegal drugs and trade them. Other prostitutes organize prostitutes and refer to prostitutes with “smiley faces” emoticons, reporting the number of transactions online.
In addition to Wechat’s own memes, some network creators actively produce and spread a large number of online parody emojis through PS, animation design and other software, including acts that infringe upon the portrait rights of others or the reputation rights of related parties.
During the 2022 Beijing Winter Olympic Games, the mascot “ice pier” became popular on the Internet. In order to speed up the realization of consumers’ need of “one house, one pier”, some manufacturers began to make and manually DIY ice piers. During this period, “Bingdun Pier” was adapted into cartoon images, memes and spread on the Internet, vilified and parodied, and other behaviors repeatedly attracted the attention of the outside world. And further infringe upon the right of adaptation of “ice pier”, the right of information network dissemination and even the right to protect the integrity of the work.
In fact, whether it is Wechat emojis, or some online images or IP content, some of them have applied for intellectual property protection. Parody of emojis through PS and other technology may also involve infringement of the intellectual property rights of these emojis themselves.
The law is the written morality, and the morality is the inner law. In Feng Shuai’s view, we should not only abide by the provisions of the law, but also have the requirements of morality and other Chinese traditional virtues. “in online speaking and other behavioral activities, we should produce and use emoticons in good faith, pay attention to reasonable boundaries, and avoid harming the legitimate rights and interests of others and social moral order.”