数据信用的刑法保护——以“流量黑灰产”为例

The Criminal Law Protection of Data Credit:Illustrated by the Case of Click Farming

在数字经济时代,数据不仅是战略资源,而且涉及社会公共利益。保护数据权益是未来法律修改的重要内容,而数据信用是数字经济的基础,亟需法律保护。“流量黑灰产”的恶意刷量行为破坏了数据的真实性与有效性,严重扰乱了正常的生产经营秩序,阻碍了我国数字经济的健康发展,亟需刑法规制。但是,非法经营罪等罪名在应对“流量黑灰产”时都存在入罪漏洞,难以有效遏制数据造假产业链的蔓延。《中华人民共和国刑法》(1997年修订)立足于打击工业时代的犯罪,在应对网络空间乱象时明显不足,因而,增设“妨害数据信用罪”是维护数字经济基础秩序的首要任务。

In an era of information explosion,the connection between netflow and economy can generate business value,which has spawned a data fraud industry chain that makes malicious click farming as a profession.That is,″click farming″.Click farming is fraudulent in nature,seriously corrupting the authenticity and validity of data,and forming a lot of economic bubbles,which has buried a huge hidden danger for the healthy development of China s digital economy.Technical prevention and legal regulations are urgently needed.However,the click farming has the characteristics of profiteering,concealed and large-scale,thus other departmental laws,such as administrative law and civil law,face difficulties in prosecuting and obtaining evidence,etc.Therefore,it is of urgency and necessity to use criminal law to crack down on click farming industry chain.Based on combating crimes in the industrial age,China s current Criminal Law is obviously inadequate in dealing with the chaos of cyberspace.The means and forms of click farming are very diverse.At present,a few click farming behaviors can be punished according to the crime of illegal business operation,a few can be punished according to the crime of false advertising,and a small few can be punished according to the crime of destroying computer information system.However,none the above crimes can fully cover all types of malicious click farming behaviors and subjects,nor can they properly evaluate the nature of the legal interests infringed upon by click farm,which makes it difficult to effectively curb the spread of the data fraud industry chain.Therefore,the regulation of click farming within criminal law should be resolved from the legislative level in the future.The essence of malicious click farming is data fraud.The legal interest infringed by click framing is the normal credit order of society,the core of which is the data credit order in cyberspace.With the development and application of a new generation information technology,China has entered the era of digital economy.Data is not only a means of production,but also a strategic resource of the country.Protecting data rights and interests is the primary task of future legislation.The premise of the generation of data value is authenticity and validity.Only the data based on credit can be trusted by the public and promote economic development.If the data itself is false and untrue,then it is worthless or negative.Therefore,protecting data credit is a prerequisite for the healthy development of the digital economy.With the comprehensive promotion of the digital economy,data credit has gradually become the most important social credit.The rise of e-commerce platforms makes anonymous transactions become the mainstream transaction mode,and market transaction behavior tends to be more intelligent and platform oriented.In this process,traders have gradually transformed their trust in person and contract into information and data.It can be said that data credit is the basic order to maintain the normal operation of the digital economy.The protection of credit cannot stop at personal credit and contract credit,but should be extended to data credit.Therefore,adding″crime against data credit″is the first task to protect the basic order of the digital economy.The addition of″crime against data credit″does not violate modest restraining of criminal law.The anonymity and amplification effect of the Internet increases the harmfulness of illegal acts in cyberspace.The speed of technology update has far exceeded that of legislation,and the criminal law in the traditional industrial age has been difficult to deal with new types of cybercrimes in the information age.The core of coping with the risk of digital economy is to ensure the authenticity of data,that is,to ensure the order of data credit.In this process,the criminal law should give full play to the positive function of value guidance and order maintenance so as to promote the healthy development of the digital economy.The development of digital economy is related to the destiny of a nation.China must grasp the historical opportunity of the industrial revolution,and promote the economic prosperity with a good legal system.In the protection of new data rights,such as data credit,China should put forward distinctive solutions.Only by innovating legal theories to promote industrial development can China become a leader in the global digital economy.