Qingping: He was convicted of violating the right to reputation for giving a "bad review", why?

Source: China Youth Daily client

Recently, Zhang Ming (pseudonym), a graduate student of a university in Beijing, and another netizen "Ma Qian" were sued by the "Liberal Arts Examination Network" after publishing in the Zhihu message area that "Wenkao Tiger Is Looking at the Tiger and Pulling a Frame on WeChat, Who Dares to Have a Real Name" and "Rotten, White Don't Want, Disgusting". The court ruled in the first instance that they constituted infringement of the right to reputation, and continuously published an apology statement in a prominent position on Zhihu.com for 24 hours, apologized to the plaintiff and eliminated the impact; and compensated Wenkao.com for economic losses of 2,500 yuan, and the plaintiff's expenses to stop the infringement of 772.5 yuan respectively.

This matter has aroused heated discussion among netizens, and some people have questioned "Can't say if it is not done well?" "Who would dare to give a bad review after that?"

Mainland e-commerce law stipulates that e-commerce platform operators shall establish and complete credit appraisal systems, publicize credit appraisal rules, and provide consumers with ways to evaluate the goods sold or services provided within the platform. The SPC has also given a judicial interpretation that consumers' right to fair comment on the quality of goods or services is a "right to make fair comments." Therefore, Zhang Ming, as a consumer who purchased the courses of the examination and research institutions, enjoys the right to evaluate the effectiveness of the courses and the teaching ability of the institutions.

The key to the problem lies in whether the evaluation speech is realistic, whether there is insult, slander and other behaviors against the business, and whether it is objectively due to excessive evaluation rather than the facts themselves, which damages the reputation of the business and reduces its social evaluation. Article 1024 of the Civil Code stipulates that any person and organization has the right to reputation, and the infringement of reputation needs to be satisfied: the act of defaming others such as insulting and defaming, being able to point to a specific person, and the consequences of a third party being able to know and objectively causing the victim's reputation to be reduced. These four conditions must be met at the same time to constitute infringement of reputation. The court's first-instance judgment held that the words "tiger looking at the weChat rack" and "being harassed by the Internet" in Zhang Ming's remarks insulted or slandered the plaintiff, constituting infringement of the right to reputation. That is to say, the court held that these anonymous remarks have gone beyond the evaluation of the curriculum and teaching ability, etc., and have shifted to the infringement of the reputation of the merchant.

Whether the service of the institution is good or not, consumers have the right to comment, but when making remarks, they cannot fabricate, exaggerate, insult and slander relevant people, and must comply with laws and regulations. For merchants, "bad reviews" are the rights of consumers, and even if the suggestions are sharp and harsh, as long as they are not malicious and fabricated, they may as well accept it with an open mind. It must be able to withstand the praise of "good service and excellent curriculum", and it must also withstand the evaluation of "expensive price and poor service", and if you can't listen to good words, you will gladly accept it, and if you are badly evaluated, you will jump up and complain.

Incidents of disputes arising from "bad reviews" have not been uncommon in recent years. In September 2020, a video blogger publicly posted a video saying that it was "particularly greasy" and "no real material" after tasting at the Wangfujing DogBuLi store in Beijing, and was later reported to the police by the owner. The video blogger believes that as a consumer, he has subjectively evaluated the "bun" product from the aspects of taste, ingredients, and service, and there is no fictitious and untrue content. In the end, dog ignore group issued a statement to apologize to the society. This incident also gave enterprises a wake-up call, with a positive attitude to correctly face bad reviews, with better services and products in exchange for consumer praise is a good way to solve.

The same is a bad review, the former consumer was awarded compensation, the latter company apologized. How to evaluate bad reviews is the normal use of "fair comment rights"? Where are the borders?

Today, although the first-instance judgment has been released, the case has not yet reached the end, and both parties have now filed an appeal. In the second-instance judgment, we expect that the higher people's court will not only give results on key issues such as distinguishing between malicious slander and normal bad reviews and spitting, but also give professional guidance on reasoning and interpretation, so as to prevent the infringement of the right to reputation of businesses, but also to protect consumers' right to legitimate evaluation, so that the public can understand how to properly use the right to fair comment.