One, cited
Since entering the information society, people are increasingly choosing to publish their own words on the Internet, but also because of the network's virtual nature, convenience, openness and social impact of a wide range of network defamation cases have also increased. Shandong "Caoxian quote case" [1], Henan Lingbao "Shuai quote case" [2], Hebei Baoding city "HIV women events" [3] and other provinces network libel case attracted numerous social media and netizen's attention and the discussion, from also exposed network legislation in China in terms of reputation right protection, network service providers legal responsibility of loopholes and gaps.
Based on the above thinking, the Internet defamation as the study object, its definition, characteristics, elements, and so on, focusing on the relationship between the network libel and public supervision, the relationship between the network libel and the freedom of expression, etc., in order to make the relevant areas of our country's legislation and policy formulation is useful.
Two, the definition of network defamation and legal regulation
1 Definition and characteristics of Internet defamation
Defamation is a ancient tort, early in the Western Zhou Dynasty, China have "libel", and has been in use in the late to the feudal society. "Han Fei Zi and unspeakable," king if this letter, is small that destroy slander slander "of" defamation "refers to false words destroyed. "Slander" refers to talk privately, "slander" refers to denounced as "slander" in China's ancient Chinese meaning to say ill of others, slander and destroying the reputation of others. Can be seen that the "libel" false facts, damage the basic essence of the reputation of others has been passed down. Libel in western law dating back to the ancient Rome period, the development has formed a legal system for defamation of their respective national conditions, a representative of the United States tend to protect the freedom of expression of the United States libel law, more inclined to protect the reputation of the British libel law, defamation of the German law of libel and defamation of the Russian legal system.
With the popularization of network technology in the world, there are different degrees of Internet defamation in different degrees. In 1991, the network's "birthplace" the United States of America tried the first case of libel suit, followed by the United Kingdom and Australia began to appear in such cases. In recent years, China has also been a network infringement of intellectual property rights, reputation and other infringement, and has aroused great concern from all walks of life. Internet libel in our country is not a standard legal term, there is no law to define it. When the law does not make special provisions for the network defamation, the judicial organs of China regard it as a special form of defamation, which is determined by the relationship between libel and slander. There is no essential difference between the elements of the network libel and the traditional libel, but the way of the behavior has changed, that is, the libel act in the field of the Internet. Thus it can be considered that the definition of the Internet defamation is reasonable.
Slander is deliberately spreading false and fictitious facts, belittling others personality, damage the reputation of others right infringement. Different degrees of defamation are subject to tort law and criminal law. National People's Congress in 2000 promulgated the decision on the maintenance of Internet security, the fourth provisions, the use of the Internet to insult others or fabricating facts to slander others constitute a crime in accordance with the relevant provisions of the criminal law to pursue criminal liability." Sixth provisions, the use of the Internet to infringe upon the legitimate rights and interests of others, constitute a civil tort, and bear the civil liability according to law." These two provisions from the side can be seen that the network libel is a special form of libel, its responsibility to bear the same way and defamation. In summary, it can be concluded that, the Internet defamation is refers to the use of network channels, fabricating and spreading false facts, damage the reputation of another tort. Network defamation because of their different degrees of civil tort law and criminal law adjustment.
Although the Internet defamation is a special form of libel, but this does not mean that the traditional legal resources enough to conduct a comprehensive regulatory network libel behavior, the network has different from the characteristics of libel.
First, the network defamation has a hidden network of virtual and open, it is because of this, any user on the network to publish defamation information, such as the constraints of the moral and other factors than in real society. Concealment is the biggest feature of the network defamation, which also produced a victim to collect evidence, the public security organs difficult to put on a number of difficult.
Second, fast transmission speed, low cost, wide range of influence, caused great harm to the first, with the traditional defamation compared, the propagation speed of Internet defamation is unmatched, the spread and dissemination is almost at the same time. The information released by the network can be transmitted to the audience in an instant, and allows the audience to transmit the information quickly and conveniently. Secondly, in the real society, the need for libel in the oral communication, written form of communication, communication is slow, but also need to pay a certain time and energy, in addition, the reality of libel will be subject to public pressure to bear greater social pressure, and therefore higher costs. And the publication of libel on the Internet is almost negligible, so in terms of cost, the network libel action has a natural advantage. Again, because the network is open, the libel can easily pass to any corner of the world, breaking the geographical restrictions of the traditional libel. In conclusion, the network libel virtually increased the degree of harm to be detractors, the harm is large from the reality of the case can sneak a peek at some of, such as Hebei Yan Deli "HIV women events" network libel case to the victim's personality reputation brought great adverse effects, easy to cause the victim self mutilation, cause varying degrees of mental disorders and more harmful to healthy, civilized, harmonious network environment.
Third, the network service provider's responsibility is not clear ISP service provider (Internet, service provider) is a network of information services, intermediary services and other services industry practitioners. Network service provider can be a legal person, the non legal person organization, also may be the natural person who provides the service. Network service providers as shown in figure 1.
Figure 1 network service providers and examples
Network service providers have broad and narrow points. Broadly, the network service provider is generally divided into ICP content providers (In-ternet, content provider) and the network intermediary service providers. Internet content providers, they are the main body of information production, the initiative to publish information to the public and to be transmitted. Network intermediary service provider, which is the main body of information communication, is a network service provider in the narrow sense. Network intermediary service providers can be divided into two categories: IAP Provider Internet (access) and IPP Provider Internet (presence). Network access service provider provides network service, website construction, virtual host "pipeline" service. Network platform service provider is mainly to provide users with search engines, personal home, online shopping, such as interactive platform services.
In real society, the network service provider in the process of providing services will often play different roles, such as Baidu in addition to provide search engine, that is, the role of the platform service providers, but also the initiative to publish online advertising, etc., but also the network content providers. Network service providers to provide a diversity of services will undoubtedly increase the complexity of the decision in the network disputes should bear what responsibility. In addition, China's law only on the network service providers to undertake the responsibility for infringement and the general reputation of tort liability principle and way to make a provision, its network defamation liability is not clear, the network has lagged behind the growing number of cases, it is not conducive to the protection of victims.
2 elements of network defamation
According to the theory of tort liability in civil law of our country, the elements of tort liability include: behavior, damage fact, causality and fault four elements. In the principle of liability for fault liability four conditions must be simultaneously, in the non fault liability principle is not the essential fault. The main body of the civil tort liability of the network defamation is the publisher, the Internet content service provider, and the Internet intermediary service provider of the libel. The web content service providers and Internet intermediary service provider bear different imputation principles of liability, the liability is different. After the discussion, here not verbosity, only Internet defamation of general tort liability constitute elements of the.
First, the damage behavior of the act includes two cases: the first one is a form of defamation, the actor through the network to spread the reputation of a specific person. The character of the libel is a false "fact" that must be false ". If libel is not made up, but the fact that it is an objective reality, even if it is detrimental to the personality, reputation, or network libel, slander must be made on the Internet to spread (in the public or not, to make the public or not third people know). The second is not a form of defamation, that is, the infringement of the right in the form of a passive implementation of infringement. Such as network service provider to know that the user is published on the website of the speech is libel, still let the infringement occurred and do not take measures to delete the words.
Second, the fact that the damage to the facts refers to a certain action against the reputation of others and the victim's reputation, spirit or property, etc.. Damage to the facts is the core element of tort liability, is a prerequisite for tort liability. Because the main function of tort liability is to compensate the victim, so it is necessary to damage the facts.
The burden of proof lies in the victim, the loss of property is more objective. Spiritual damage is determined by the victim after the evidence of the Supreme People's Court on certain issues of mental damage compensation liability of the, the provisions of the tenth, 11 of the provisions of the extent of damage, the victim's social evaluation is invisible, it is difficult to prove that the victim is only required to provide evidence for their own defamation content has been for their own third people. 6 the author believes that the extent to which the right of reputation can be damaged can be determined according to the website of the website of the libel.
Third, causality only network of defamation and damage between the results there are consequences of the association constitutes network of defamation.
Fourth, there is a fault in the subjective fault. The former means that the actor has foreseen that the behavior of the actor has foreseen the possibility of damage to others, but it is the result of negligence and the neglect of the subjective psychological state. 7 the fault is the key to determine the network libel case, the responsibility of the Internet service provider, it is easy to identify the fault of libel, but the fault of the network service provider is different because of the particularity of the network environment.
3 legal regulation of Internet defamation
China's current legal regulations on Internet defamation is in the constitution of the people's Republic of China, the people's Republic of China Tort Liability Act, "the people's Republic of China" and other basic laws, the law is very little, which is obviously lagging behind the rapid development of the network, the network tort.
From the civil point of view, China has established a relatively complete protection of the right of reputation, from the side to protect the right of citizens from the reputation of libel and slander of the network of this particular form of defamation. Mainly include: "the people's Republic of China National Law" 101st from the principle of prohibition of abuse, slander and other ways to damage the reputation of citizens and legal persons. "The people's Republic of China Tort Liability Act," the thirty-sixth is known as the Internet, which provides a network service provider to take the necessary measures to delete, shield, disconnect, etc. after receiving the user's infringement notice.
From a criminal point of view, in addition to the 246th provisions of criminal law, the Supreme People's court, the Supreme People's court, the Supreme People's Procuratorate promulgated the "on the use of information networks for the application of criminal cases, such as the application of a number of issues of legal interpretation", this is our first concern in the field of Internet defamation. Behavior to explain the "make use of the network to slander others and the circumstances are serious" clear into crime, and of the "serious" that libel conviction were quantified: with a defamatory information is actually click and browse number reached more than 5000 times or number to be forwarded to reach more than 500 times; causing serious consequences victims or their close relatives of insanity, self mutilation and suicide; within two years had received administrative punishment for libel and slander others. The interpretation greatly increases the operability of the network in the field of libel.
In summary, general principles or rules on China's provision of Internet defamation of many traditional defamation made, put forward suggestions are as follows.
First, the development of specialized network method, adjust the network, including network defamation and other emerging issues, such as the definition of its definition, elements, network service providers, etc..
Second, the refinement of criminal libel case handling procedures, to solve the difficult problem of filing. As is known to all, the criminal libel is a case of private prosecution, victim that defamatory information is click and browse number reached more than 5 000 times, or number to be forwarded to reach more than 500 times "with considerable difficulty, the evidence tend to grasp in the hands of the network service provider. Therefore, the public security organs should be reduced to the extent of the network defamation of criminal cases, as long as the victim can prove defamation information in more than 5 days of access to tens of millions of websites (such as Baidu, Sina, Sohu), or more than 10 websites, public security organs should accept, and the use of technical means to investigate defamation information is actually clicks, browse, forwarding the number of times.
Three, network service provider's responsibility
Network service provider for the end user of the network defamation and other violations should be responsible, the legal elements of why concern. Internet service provider has the rationality of the network defamation of its users. First, the law meaning of tort liability law is corrective justice, fill up the responsibility, network service providers directly defamatory information or due to the increase in harmful consequences, should bear the corresponding responsibility. Secondly, from an economic point of view, if a person or organization does not need to take responsibility for one thing, then he can do it without limits. If Internet service providers are not responsible for the network defamation, the libel information is spread through the Internet service provider. Again, from a practical point of view, the network's virtual nature makes it difficult to determine the source of libel, and the network service provider is relatively clear, easy to recover.
In view of the different characteristics of Internet content providers and network intermediary service providers, the legal responsibility of the network is analyzed.
1 network content provider's responsibility
Do a clearly defined legal status of the Legislative Affairs Commission of the Standing Committee of the National People's Congress on Internet content provider, the content provider, legal status and the publisher of the same should responsible for the authenticity and legitimacy of the uploaded content. 8 Internet content providers publish their own information, which is the publisher of the libel.
2 network access service provider's responsibility
About whether the network access service provider is responsible, the world and regional regulations are not uniform. The United States, Singapore and other countries clearly defined network access service providers do not need to be responsible for their network user's remarks negative defamation. 9 the contrary is that the provisions of the Hongkong area non intentional infringement can not bear the responsibility of the Internet access service provider for its user's comments, in line with the "take reasonable measures to ensure that the defamation of the speech will not be published" and "once published as if it were proposed to take steps to solve" the two conditions can be exempted.
The responsibility of network access service provider can take the safe harbor principle and the Red Flag Standard for the right infringement. First, the network access service provider provides only information transmission "pipeline" service, the network transmission of information is not familiar with, also does not have the ability to control, so according to the principle of the kind-hearted father, the duty of care is relatively other network service providers is low. Although the network access service providers do not have to carry out a pre review of the information on the network, but still have the obligation to stop the event afterwards. If network access service provider after receiving the user by slander notice of infringement, lazy to take measures to disconnect the link, laissez faire the result of tort occurred, and Internet content providers or the end user shall bear joint and several liability. Second, another case is the use of the red flag, when the network access service providers to the existence of infringement is knowing that the standard is as a normal person can be found in the right infringement, the right person is not informed, network access service providers will constitute infringement.
3 network platform service provider's responsibility
Network platform service provider to provide users with personal space, search, shopping and other services. Network platform service provider for Internet users to provide the BBS forum, blog and other media on the issue of whether to publish the defamation of information whether the tort liability has two views. One that should be strict in its responsibility. People who hold this view believe that the nature of the Internet is a kind of media, which is not different from the traditional media. For example, in 1998, Sweden, a special issue of the provisions of the law, the site operators have the obligation to monitor the contents of its transmission within a reasonable limit. Another view is that it should bear the responsibility of the fault, that is, only the network platform service provider in the case of subjective fault should bear the responsibility.
I agree with the second point of view, because the network service provider does not take the initiative to produce information, to the public dissemination of information is released by the network users, it is only a platform to play a role in the dissemination of information. In the whole process of the spread of libel information, network platform service provider's control over information is not like the Internet access service provider as the ability to control, nor is it similar to the Internet content provider's initiative to publish information. Network platform service provider has a certain control, editing and auditing ability, so it should be considered in the behavior of the network tort to judge what kind of responsibility it should take.
First, there is no doubt that the Internet users in violation of copyright, patent, trademark rights and other intellectual property rights in the network platform service providers more easily through the prior review and review found violations and to stop or remove the infringing works published in the network. But the Internet defamation against defamation is the fact that the fabrication of facts, and openly damage other people's personality, reputation. The key to judging whether the libel is to determine the truth of the fact. However, even if the ordinary people in the face of Internet defamation and slander others can not judge the authenticity of the facts, so the network platform service providers to determine whether the network statement is true, whether it belongs to libel is too harsh, network platform service provider prior review is limited to formal review, when the facts can not be identified, the attitude of speech, language, narrative is reasonable as a standard. This is also the network platform service provider to distinguish from the access service provider's obligations.
Second, the network service provider and network access service provider as well as the obligation to stop, that is, if the right person to notify the network platform service provider of its network of Internet users, network platform service provider should immediately remove the alleged infringement content or cut off the link. If network platform service provider refuses to take corresponding measures or lazy to do to the duty of care, laissez faire infringement occurs as a result on the existence of subjective fault, and end user shall bear joint and several liability.
Third, as a good manager, network platform service provider knowingly or should be aware of the relevant text infringement, still do not delete or disconnect, then with the network users to assume joint responsibility.
Four, Internet defamation and public supervision
Internet defamation reflected the contradiction between the citizens freedom of speech on the constitutional rights and civil right of reputation and freedom of speech and the right of reputation is the constitutions of various countries to protect the legal interests, but the pros and cons is national laws of value choice. There is no limit to the freedom of speech, in order not to infringe upon the rights of others, such as the right to reputation. So when the citizens' freedom of speech right libelous constitute illegal infringement, the formation of a network of defamation. And when the network defamation of a party for public officials will be caught in the opinion of the Internet users in the end is libel or the right to exercise the right of public supervision, etc.. Because the law of our country has a loophole in the network, it is necessary to analyze this problem.
Freedom of expression and supervision is one of the basic rights of citizens of the legal protection of our country. The people's Republic of China on the constitution of the people's Republic of China on the twenty-fifth provisions of citizens of the people's Republic of China have the freedom of speech, press, assembly, association, demonstration, and freedom of the people's Republic of China." This reflects the constitution as the supreme law to protect the right to freedom of speech. In addition, Article 41 of the constitution provisions "citizens of the people's Republic of China for any state organ or functionary, right to make criticisms and suggestions; for any state organ or functionary illegal dereliction of duty, put forward complaints, charges or exposures of the right to the relevant state organs, but may not fabrication or distortion of facts for false accusation." August 31, 1998 our country promulgated the "Supreme People's Court on the case of a number of issues related to the interpretation of a number of issues" provisions of the "civil law to the relevant departments to report, accuse others of violations of law and discipline, others to report, the right to sue against the people's court to the people's court, the people's court shall not accept. If you are to take charge of the report, the name of the accused, slander others, causing damage to the reputation of others, the parties to their reputation by the people's court proceedings, the people's court shall accept." Also reflects the legal right of citizen supervision confirmation.
The supervision right includes the right of criticism, suggestion, complaint, accusation and report of the public officials, criticism, suggestion, complaint, accusation and report to a certain extent also reflects the right of freedom of expression. Therefore, public supervision is the extension and embodiment of the right of freedom of expression in a specific legal relationship. When both sides of the two parties are the same, the two parties shall enjoy the same right of reputation and the right of expression of one party shall not prejudice the right of reputation. But when the "defamation" of a party for public officials, because the civil rights of public officials supervised, is not the right to be limited to the reputation of public officials, or to the public officials, such as the right to report such supervision is the network defamation, I think the answer is willing to.
First, from a legal point of view, in the modern society under the rule of law and government officials as the charge of the public power of public figures, the right of reputation and the right of privacy need is restricted, even they think by citizens "slander" and bring a private prosecution, the law also should not unconditionally support their claims, because the law does not require citizens to criticism of government officials 100 percent accurate facts and attitudes fair, otherwise it will only will fundamentally citizens the right to criticize, supervision from the complete abolition.
Second, from a practical point of view, the government's reputation and image is built on the basis of the rule of law and public trust, not just because of the criticism of citizens seriously damaged, the government as a public law, do not have the right of reputation, the government can not be more than the citizen's reputation infringement and defamation litigation. But in reality, "Shuai quote case", "Cao Lei Duan quote case" public officials who abuse their powers, the manipulation of public security and judicial retaliate against citizens to report, private prosecution change indictment cases continue to occur, from the side reflects the Chinese in network libel the lack of legislation has seriously affected the rights of constitutional protection of citizens' freedom of speech, right of supervision, greatly damaged the judicial authority and credibility, destroys the legal system construction, lead to social instability.
Finally, from the perspective of the world, government officials and civil servants' right of reputation and privacy right protection standard relatively lower than ordinary people, this also for jurists generally accepted. State organs and other public officials, such as citizens are entitled to the right of reputation, but relative to the ordinary citizens, public officials from the status, or have the resources, rights are in a strong position. Government officials and public figures are often in the use of effective communication channels have a greater capacity, so than the average people have more opportunities to fight the wrong speech. But, as Montesquieu has said, the freedom of a citizen is the boundary of the freedom of another citizen. Citizens to exercise the right of speech freedom, public supervision is also limited, with false as the boundary, fabricating facts false accusation against others, with intent to cause others to be subject to criminal investigation, if the circumstances are serious behavior. Crime of false accusation in the objective performance as fabricated others to commit a crime fact, report to the state organs or relevant units or take other methods is sufficient to cause the judiciary investigation activities. This is consistent with the spirit of the United States against the principle of the substance of the public figures in the defamation. The essence of the principle of malice is the fact that the comments of the public figures include the fact and the point of view. It emphasizes that public figures should be transferred to the individual's privacy and reputation, and accept the supervision of public opinion.
In summary, the important meaning of the modern rule of law, is the public officials must tolerate citizens may not always accurate criticism. The rapid development of the Internet today, we should clear clarify network report "and" Internet defamation "," false boundaries and for public officials emphasize that the citizen participation, expression of right and the right of supervision as the Internet defamation defenses, unless public officials to prove each other is deliberately false accusation. On the other hand, the public should not be borne defamation.
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